United States District Court, D. Columbia.
SAMUEL GRAVES, Plaintiff, Pro se, Washington, DC.
For REPUBLIC NATIONAL DISTRIBUTION COMPANY, Defendant: Charles Robert Bacharach, LEAD ATTORNEY, GORDON, FEINBLATT, ROTHMAN, HOFFBERGER & HOLLANDER, Baltimore, MD.
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Plaintiff Samuel Graves filed suit in District of Columbia Superior Court on October 28, 2013, alleging Defendant Republic National Distribution Company violated Title VII of the Civil Rights Act of 1964, § 2000e, et seq. On November 25, 2013, Defendant removed this case to this Court pursuant to 28 U.S.C. § § 1441 et seq. Presently before the Court is Defendant's  Motion to Dismiss for failure to serve and for failure to state a claim. Upon consideration of the pleadings, the relevant legal authorities, and the record for purposes of a motion to dismiss, the Court finds that Plaintiff failed to properly serve Defendant. Accordingly, for the reasons stated below, Defendant's Motion to Dismiss is GRANTED.
I. LEGAL STANDARD
A court ordinarily may not exercise personal jurisdiction over a party named as a defendant in the absence of service of process (or waiver of service by the defendant). See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (" Before a . . . court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." ); Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 90 L.Ed. 185 (1946) (" [S]ervice of summons
is the procedure by which a court . . . asserts jurisdiction over the person of the party served." )). Pursuant to Federal Rule of Civil Procedure 12(b)(5), " if the plaintiff does not properly effect service on a defendant, then the defendant may move to dismiss the complaint" without prejudice. Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003); see also Simpkins v. District of Columbia, 108 F.3d 366, 369, 323 U.S. App.D.C. 312 (D.C. Cir. 1997). " The party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of [Federal Rule of Civil Procedure 4] and any other applicable provision of law." Light v. Wolf, 816 F.2d 746, 751, 259 U.S. App.D.C. 442 (D.C. Cir. 1987) (internal quotation omitted).
When a Plaintiff is serving a corporation, a copy of the summons and the complaint must be delivered to " an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process, and -- if the agent is one authorized by statute and the statute so requires -- by also mailing a copy of each to the defendant." Fed.R.Civ.P. 4(h)(1).
Defendant moves this Court to dismiss Plaintiff's Complaint for failure to properly serve Defendant and for failure to state a claim. As Plaintiff filed an Amended Complaint, ECF No. , the same day as he filed his Opposition to Defendant's Motion to Dismiss, the Court will not address Defendant's alternative Fed.R.Civ.P. 12(b)(6) failure to state a claim argument.
As for Defendant's service argument, Defendant argues that Plaintiff, who is proceeding pro se, did not properly serve Defendant because Plaintiff sent the Complaint to Robert Kellner, an attorney who represented Defendant in the underlying Equal Employment Opportunity Commission claim, but who is neither Defendant's resident agent nor an individual authorized to accept service on behalf of Defendant. Def.'s Mot. at 2. Defendant's resident agent in the District of Columbia is Capitol Corporate Services, Inc. Id. at 3 (citing Pisano Aff. at ¶ 2). Plaintiff concedes that he failed to properly serve Defendant. Pl.'s Opp'n. at 2-3. Plaintiff contends, however, that the purpose and intent of Federal Rule of Civil Procedure 4 is to place Defendant on notice of a lawsuit against him and that this intent " was satisfied" because " Defendant was placed on notice of the commencement of the action" as evidenced by the fact that " Defendant . . . did move to have the matter removed to Federal Court." Id. at 3. Plaintiff argues that " [i]t would be disingenuous for the Defendant Corporation to allege they do not have notice of the action after they hire an attorney to file a Motion to Remove the matter." Id. Courts, however, have long held that a defendant's removal of an action to federal court does not waive the defendant's objection to the sufficiency of service of process. See, e.g., Morris & Co. V. Skandinavia Ins. Co., 279 U.S. 405, 409, 49 S.Ct. 360, 73 L.Ed. 762 (1929); Cantor Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 157 n .4 (2d Cir. 1996). Accordingly, the Court finds that Defendant in no way waived its right to challenge Plaintiff's deficient service by removing this case to federal court or, in so doing, showing that it was on notice of Plaintiff's lawsuit.
Plaintiff further argues that the " [r]ules governing service should not be enforced with a draconian rigidity [against a pro se plaintiff] where the courts have not first informed the plaintiff of the consequences of failing to effect proper service and where defendants are in no material way prejudiced by a ...